Labor & Employment Digest: March 2014

In a practice area with as much individuality as labor and employment law, the voices of law firms inject the kind of color, insight and expertise that provide inside counsel and other legal professionals with a cornerstone of true understanding. Here, InsideCounsel brings together the voices of firms active in the space to get their take on the issues shaping the policies of workplace compliance and regulation.

Whistleblowing in the “miner” key

“In 2013, the Mine Safety and Health Administration (MSHA) continued to focus its resources on enforcement and whistleblower claims. MSHA issued four Pattern of Violation (POV) notices in 2013, employing its new POV standard that is currently being challenged by the mining industry based on the argument that MSHA exceeded its authority in issuing the POV Final Rule. MSHA also continues to utilize impact inspections to target mines with increased injury and illness rates, or significant violation history. MSHA's enforcement of whistleblower claims has increased significantly over the past several years and MSHA continues to devote resources to this area. MSHA released an updated Miners’ Rights Guide in an effort to increase awareness of whistleblower protections.”

— Matthew Korn, associate. (Columbia), Fisher and Phillips

Flexing for families

“San Francisco's Family Friendly Workplace ordinance took effect on Jan. 1, 2014, giving employees with caregiver responsibilities broad new rights to request flexible or predictable work arrangements – and placing strict requirements on employers to consider requests. San Francisco is the first city to adopt a workplace flexibility ordinance, following Vermont's new statewide workplace flexibility mandate. In the near future, we expect to see more of these flexible work arrangement laws across the country. ”

“The message here is not about an overreaching agency but about unintentional but significant corporate failings. The Occupational Safety and Health Administration (OSHA) has rightly determined that many temporary employees fall through the cracks and do not receive the same safety training as ‘full time’ employees or are not included in respiratory protection or hearing conservation programs … even though they are exposed to the same hazards. The proliferation in the use of temps, including as a part of ‘temp to hire’ programs or where ‘temps’ stay on for months or years has exacerbated the risk. In a number of high profile cases this year, a temp employee was killed on the first day of work. No matter the reasons, OSHA will be inclined to find ‘willful’ conduct.”

“Employers are closely monitoring recent Fair Labor Standards Act litigation concerning unpaid internships. On November 26, 2013, the Second Circuit granted an appeal request from Fox Searchlight Pictures challenging the June 2013 decision that it should have compensated unpaid interns for their work on the 2010 movie ‘Black Swan.’ Stay tuned…”

“After a first term focused largely on enforcement, The Occupational Safety and Health Administration (OSHA) is now starting to reinvigorate its regulatory program. Just in the last few months OSHA has proposed two significant new rules that, if finalized, could change the way numerous businesses operate. OSHA's proposals to reduce the permissible exposure limit for crystalline silica and to require certain companies to provide quarterly recordkeeping updates to OSHA—which may make them publicly available—are two game changing initiatives. Employers should stay tuned to these – and likely – other rulemakings that OSHA is now dedicating resources to finalizing before the end of the Obama Administration.”